Citation NR: 9704979
Decision Date: 02/13/97 Archive Date: 02/19/97
DOCKET NO. 94-47 435 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to permanent and total rating for pension
purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Associate Counsel
INTRODUCTION
The veteran had active duty from October 1973 to December
1974.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a rating decision of March 1994 from
the Milwaukee, Wisconsin, Department of Veterans Affairs (VA)
Regional Office (RO), which denied entitlement to permanent
and total rating for pension purposes.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO was incorrect in not
granting the benefits sought on appeal. The veteran asserts
that entitlement is warranted based on the severity of his
mental and physical disabilities. He contends that he is not
able to maintain any type of gainful and substantial
employment. He further asserts that his nervous condition
and medical conditions deserve increased evaluations.
Therefore, he requests favorable determinations by the Board.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran's claims of entitlement to a
permanent and total disability evaluation for pension
purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran’s major depression with a mixed personality
disorder is productive of no more than definite social and
industrial impairment, under the diagnostic criteria for
Mental Disorders in effect through November 6, 1996.
3. The veteran’s major depression with a mixed personality
disorder is productive of occupational and social impairment
due to symptoms consisting of depression, sadness, low energy
and motivation, and early awakening insomnia, under the
diagnostic criteria for Mental Disorders in effect from
November 7, 1996.
4. The veteran’s traumatic optic neuropathy of the right eye
is manifested by a full range of motion in both eyes, a 20/20
visual acuity in the left eye, and no light perception in the
right eye.
5. The veteran’s residuals an acromioclavicular separation
of the right shoulder are manifested by complaints of pain
and stiffness, and by objective findings showing degenerative
changes, a full range of motion, and no evidence of
displacement of that extremity; and is productive of no more
than moderate impairment.
6. No functional impairment has been shown resulting from
the veteran’s history of chronic bronchitis.
7. The veteran’s disabilities are not productive of total
disability and are not sufficient to render the average
person unable to secure substantially gainful employment.
8. The veteran’s disabilities do not preclude him from
engaging in substantially gainful employment, consistent with
his age, education and occupational history.
CONCLUSION OF LAW
The requirements for a permanent and total rating for pension
purposes are not met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West
1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.342, 4.15, 4.16,
4.17 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has found that the veteran's claim is "well-
grounded" within the meaning of 38 U.S.C.A. § 5107 (West
1991). That is, the claim is not inherently implausible.
The Board is also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran
with the development of evidence is required.
Under the provisions of 38 U.S.C.A. § 1521, pension is
payable to a veteran who served for 90 days or more during a
period of war and who is permanently and
totally disabled due to nonservice-connected disabilities not
the result of his own willful misconduct. Permanent and
total disability will be held to exist where the person is
unemployable as a result of disability reasonably certain to
last throughout the remainder of the person's life. Talley
v. Derwinski, 2 Vet.App. 282, 285 (1992); 38 C.F.R. §§
3.340(b), 4.15 (1995).
There are three alternative basis upon which a finding of
permanent and total disability for pension purposes may be
established. One way is to establish, by use of the
appropriate diagnostic codes of the VA Schedule for Rating
Disabilities, that the veteran has a lifetime impairment
which is sufficient to render it impossible for an “average
person” to follow a substantially gainful occupation. The
“average person” standard is outlined in 38 U.S.C.A. §
1502(a)(1) and 38 C.F.R. §§ 3.340(a), 4.15. This process
requires rating and then combining each disability under the
appropriate diagnostic code to determine whether the veteran
holds a combined 100 percent scheduler evaluation for pension
purposes. Also, a veteran who suffers the permanent loss of
the use of both hands or feet, or of one hand and one foot,
or the sight of both eyes, or becomes permanently helpless or
permanently bedridden, will be considered permanently and
totally disabled for pension purposes. 38 C.F.R. § 4.15.
Further, permanent total disability evaluations for pension
purposes will be authorized, provided other requirements of
entitlement are met, for congenital, developmental,
hereditary or familial conditions, as well as for
disabilities that require indefinite periods of
hospitalization. 38 C.F.R. § 3.342(b) (1995).
Alternatively, a veteran may establish permanent and total
disability for pension purposes even absent a combined 100
percent schedular evaluation by providing he or she has a
lifetime impairment precluding him or her from securing and
following substantially gainful employment. 38 U.S.C.A.
§ 1502, 1521(a); 38 C.F.R. § 4.17 (1995). Full
consideration must be given to unusual physical or mental
effects in individual cases. 38 C.F.R. § 4.15. However, if
there is only one such disability, it must be ratable at 60
percent or more; if there are two or more disabilities,
there must be at least one disability ratable at 40 percent
or more, and sufficient additional disability to bring the
combined rating to at least 70 percent. A veteran who is
considered permanently and totally disabled under these
criteria is then awarded a 100 percent schedular evaluation
for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17 (1995).
Finally, even if a veteran’s disability ratings fail to meet
the aforementioned percentage standards, a permanent and
total disability rating for pension purposes may be granted
on an extra-schedular basis if the veteran is subjectively
found to be unemployable by reason of his or her
disabilities, age, occupational background, and other related
factors. 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (1995).
In denying entitlement to nonservice connected pension
benefits in a rating decision entered in March 1994, the RO
assigned a 30 percent rating, under Diagnostic Code (DC)
9207, for the veteran’s psychiatric disorder. In August
1994, the RO confirmed its 30 percent rating for major
depression with a mixed personality disorder, and also
assigned a 10 percent disability rating, under DCs 5010-5304,
for residuals of an acromioclavicular separation of the right
shoulder. The combined rating for the veteran’s nonservice-
connected disabilities was calculated to be 40 percent. In
November 1994, the RO increased the veteran’s combined
nonservice connected disability rating, assigning a 40
percent disability for traumatic optic neuropathy, right eye,
with no light perception, under DC 6066. The veteran’s
combined rating for his nonservice-connected disabilities was
increased from 40 percent to 60 percent disabling.
In addition to the above-mentioned rated disabilities, the
veteran has also complained of or has been noted to have a
history of chronic bronchitis. The Board notes that the VA
examination conducted in August 1994 has clinically evaluated
this condition. Accordingly, the Board will consider the
veteran’s history of chronic bronchitis as part of his
current pension claim.
I.
As noted above, entitlement to pension benefits may be
objectively determined if the veteran is unemployable as a
result of permanent disabilities or if he experiences
disabilities which would preclude the average person from
following a substantially gainful occupation, if it is
reasonably certain that the disabilities are permanent.
38 U.S.C.A. § 1502; 38 C.F.R. § 4.15. An analysis of the
propriety of the rating assigned for each of the veteran’s
nonservice connected disabilities is therefore warranted.
A. Major Depression with Mixed Personality Disorder
The veteran has been hospitalized for depression or
schizophrenic reactions several times between 1976 and 1993.
The most recent record of hospitalization is for the period
September to October 1993. At that time, the veteran was
given an Axis I diagnosis of depressive and anxiety
disorders, both not otherwise specified. The medical records
also contain reports by the veteran of three attempted
suicides in the early 1980’s. He has been treated for
alcohol and substance abuse several times. The most recent
record of treatment on an outpatient basis is a follow-up
visit to the VAMC Milwaukee, in February 1996.
The veteran was given a VA examination in August 1994. At
that time he reported problems with depression, sadness, low
energy level, low motivation, poor appetite and early
awakening insomnia. The examiner noted that the veteran was
relaxed, good humored and said that he had been reading
novels. He denied thoughts of suicide, and stated that he
was “much more under control.” He admitted having pretended
hearing voices in the past in order to ensure hospital
admissions (there is a similar admission in a medical report
dated March 1988). The examiner stated that the veteran was
well-spoken, in a good mood, and that “his thinking appeared
to be quick and clear.” The Axis I diagnosis was “psychosis
not otherwise specified with paranoid features seemingly in
fair remission at present.” The examiner also noted “major
depressive episodes.” The Axis II diagnosis was “mixed
personality disorder with both paranoid and schizotypal
features.” The Axis III diagnosis was “by patient report
arthritic shoulder and chronic obstructive pulmonary
disease.” The Axis IV diagnosis was “Severity of
psychosocial stressors, severe, unemployment, poverty,
alcohol abuse and chronic psychiatric problems.” Under the
Axis V diagnosis, the veteran’s Global Assessment Functioning
(GAF) score was rated as 45, with “serious symptoms and
serious deficits in family, social and vocational
functioning.” Under the criteria set forth in the Diagnostic
and Statistical Manual of Mental Disorders, DSM-IV 46 (4th
ed. 1994), a GAF rating from 41 to 50 is described as
follows: Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job) (emphasis omitted).
In February 1995, the veteran was given a hearing. The
veteran testified that he had discontinued any psychiatric
treatment, and that he had not taken any psychotropic
medication for approximately six months. He complained that
he had difficulty sleeping, and said that he felt depressed
and isolated. He stated that he was not looking for
employment because he didn’t have any skills, and he thought
that the only positions he could get would be inappropriate
for a man of his age (medical records show that he voiced
similar opinion in January 1980). VA outpatient reports show
that in April 1995, the veteran stated that he had found a
job working for the Journal/Sentinel for 30 or more hours per
week. In February 1996, the veteran stated that he had plans
to attend school in order to obtain an accounting associate’s
degree. He continued to refuse medications.
The RO rated the veteran’s mental disorder under 38 C.F.R.
§ 4.132, DC 9207 (1995). The criteria under this provision,
effective through November 6, 1996, assigned a noncompensable
evaluation for a major depressive disorder that is in full
remission. A 30 percent rating required “definite impairment
of social and industrial adaptability.” A 50 percent rating
required “considerable impairment of social and industrial
adaptability.”
In Hood v. Brown, 4 Vet.App. 301 (1993), the United States
Court of Veterans Appeals (Court) stated that the term
"definite" in 38 C.F.R. § 4.132 was "qualitative" in nature,
whereas the other terms were "quantitative" in character, and
invited the Board to "construe" the term "definite" in a
manner that would quantify the degree of impairment for
purposes of meeting the statutory requirement that the
Board articulate "reasons and bases" for its decision. 38
U.S.C.A. § 7104(d)(West 1991). In a precedent opinion dated
November 9, 1993, the General Counsel of the VA concluded
that “definite” is to be construed as “distinct, unambiguous,
and moderately large in degree.” It represents a degree of
social and industrial inadaptability that is “more than
moderate but less than rather large.” O.G.C. Prec. 9-93 (Nov.
9, 1993). The Board is bound by this interpretation of the
term definite. 38 U.S.C.A. § 7104(c). With these
considerations in mind, the Board will address the merits of
the claim for an increased evaluation.
The medical records indicate that the veteran was diagnosed
with “psychosis not otherwise specified with paranoid
features seemingly in fair remission.” The veteran reported
being off of medication since approximately 1993, and of
discontinuing his psychiatric treatment. The examiner wrote
that the veteran was relaxed, well-spoken, in a good mood,
and that “his thinking appeared to be quick and clear.” The
veteran reported that he felt “much more under control,” and
said that he was planning to return to school for an
accounting degree. He also reported finding a job at the
Journal/Sentinel that would employ him at least 30 hours per
week.
Taken as a whole, the facts in the record correspond to a
disability picture of social and industrial impairment which
is “moderately large” but not “rather large.” A review of
the medical evidence indicates that the veteran’s psychosis
is not manifested by symptomatology that approximates, or
more nearly approximates, the criteria for an increased
evaluation at the 50 percent rate. See also 38 C.F.R. § 4.7.
While the veteran’s work record is poor, consisting of menial
labor for the last ten years, the veteran's psychiatric
condition must not be over-evaluated on the basis of a poor
work record which is not supported by the psychiatric
disability picture. At his hearing, the veteran acknowledged
that he could work. The record shows that since 1980, when
he was approximately 25 years old, the veteran has stated
that he did not want to work because he thought his lack of
skills would prevent him from getting anything other than a
laborer’s position, which he felt would be inappropriate for
a man of his age. Finally, while the Board considers and
accords some weight to the veteran’s score of 45 on the GAF
scale, the GAF is used primarily for diagnostic, rather than
rating purposes. When the GAF score is taken in context with
the other evidence of record, including the veteran’s new
job, his plans to attend college, his reading and speech
ability, and his decision that he no longer required
psychological counseling or medication, the Board finds that
the veteran’s impairment is properly rated as 30 percent
disabling. Accordingly, the Board must conclude that an
increased evaluation for the veteran’s psychosis, as rated
under DC 9207, is not warranted.
Effective November 7, 1996, the regulation governing mental
disorders, 38 C.F.R. § 4.132, has been revised and renumbered
as 38 C.F.R. § 4.130. Under the new criteria, the veteran’s
condition has been redesignated as a major depressive
disorder under Diagnostic Code 9434. The revised regulation
provides that a 30 percent evaluation is called for major
depressive disorder if there is “Occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events).” A 50 percent evaluation is
called for when there is “Occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. See 61 Fed. Reg. 52,701-702 (1996), amending
VA Schedule for Rating Disabilities; Mental Disorders
(effective November 7, 1996).
Regarding the question of whether the previous or newly
revised diagnostic criteria for a major depressive disorder
apply to the veteran’s case, the Board notes that, “where a
law or regulation changes after a claim has been filed or
reopened but before administrative or judicial process has
been concluded, the version most favorable to [the veteran
applies] . . . unless Congress provided otherwise or
permitted the Secretary of Veterans Affairs [] to do
otherwise and the Secretary did so.” Karnas v. Derwinski, 1
Vet.App. 308, 313 (1991). Accordingly, the veteran’s
disability rating will be examined under the current version
of the regulation to see if its application results in a
evaluation greater than 30 percent.
Under the revised regulation, the preponderance of the
evidence shows that the criteria for an increase in
evaluation to 50 percent have not been met. While the
veteran has a history of hospitalizations for psychiatric
problems, and although his judgment was rated “minimally
adequate at best,” the veteran’s mood, speech, memory,
understanding, motivation and other abilities, as currently
tested, are more consistent with a 30 percent evaluation.
The veteran’s complaints of depression are more than offset
by the fact that the only subjective indicator of depression
was a lack of motivation and lack of any friends, and by the
fact that the veteran has decided that he no longer required
psychological counseling or medication. A review of the
medical evidence indicates that the veteran’s psychosis is
not manifested by symptomatology that approximates, or more
nearly approximates, the criteria for an increased evaluation
at the 50 percent rate under DC 9434. As for occupational
impairment, the veteran reported finding a job with a
newspaper. With regard to speech, the examiner wrote that
“His speech was remarkable only for his good vocabulary and
his articulate verbal style.” There were no reports of panic
attacks. The veteran denied any problems with his memory,
and denied any feelings of disorientation or confusion. The
examiner reported that “concentration was not a problem
during our 75 minute interview,” and found the veteran to be
competent to handle his finances. The veteran also reported
that he was reading novels, and that he planned to attend
college to get his associate’s degree in accounting. The
examiner found his thinking to be “quick and clear.”
Paranoid features of his psychosis were termed in “fair
remission at present.” These findings indicate that under
the criteria of Diagnostic Code 9434, effective November 7,
1996, the veteran’s major depressive disorder is properly
rated as 30 percent disabling. See 61 Fed. Reg. 52,695.
Accordingly, the Board determines that the veteran’s claim of
depression (as a psychiatric disability) warrants a 30
percent evaluation under both the old and new criteria.
B. Right Eye
The veteran injured his right eye in August 1984 in an
accident involving a screwdriver which penetrated the orbit.
He suffered a traumatic optic neuropathy. After a VA
examination in August 1994, the examiner concluded that the
veteran had orbital emphysema, and that the right globe and
optic nerve did not demonstrate any significant abnormality.
A possible gaze disturbance was noted. There was no light
perception in the right eye. In September 1994, a VA
outpatient report indicates that the right iris was intact.
There was a plaque of scar tissue below the iris. Vision in
the left eye was 20/20, with some blurriness. The veteran
also sought treatment for pressure in his right eye in
February 1996. A full range of motion was noted in both
eyes. At his hearing, the veteran testified that he had
problems with his left eye involving shadows and light, and
blurriness. He also stated that his vision had been helped
by the safety glasses that he had been issued.
In November 1994, the RO assigned the veteran a 40 percent
disability rating, under the provisions of 38 C.F.R. § 4.84a,
DC 6066. That code provides that anatomical loss of one eye
warrants a 40 percent evaluation when corrected visual acuity
in the other eye is 20/40. DC 6066. A 50 percent evaluation
requires corrected visual acuity in the other eye of 20/50,
and a 60 percent evaluation requires corrected visual acuity
in the other eye of 20/70 or 20/100. DC 6065.
The next higher rating requires a corrected visual acuity in
the left eye of 20/50. However, the evidence indicates that
the visual acuity of the left eye is 20/20, uncorrected.
Therefore, the Board finds that the evidence does not support
a higher rating.
C. Right Shoulder
The veteran suffered two pre-service injuries to his right
shoulder area, a clavicle fracture at approximately age
seven, and a separation of the right acromioclavicular (AC)
joint while playing football in 1972. After a VA examination
in August 1994, the veteran was shown to have a “partial
separation at the right AC joint, without evidence of true
separation on weight bearing views with degenerative changes
at humeral glenoid articulation.” There was no evidence of
displacement. The AC joint had minimal sticking up, and
there was crepitus without tenderness. There was no motion
pain and impingement signs were negative. There was some
limitations of motion to scratch the opposite scapula at the
T10 level. The veteran had a full range of motion throughout
his musculoskeletal system.
In November 1994, the veteran’s shoulder was examined again,
after he complained of grinding, pain and stiffness. The
examiner wrote that he found “no evidence of neuropathy” or
“C5-T1 radiculopathy.” An EMG examination showed no
abnormalities in the veteran’s upper right extremity muscles.
There was some grinding, nontender of the shoulder during a
passive range of motion. Strength in the shoulders, wrists
and hands was 5/5 bilaterally. There was “good internal and
external rotation of the upper extremities.” No atrophy was
detected. Following this VA examination, the RO assigned a
10 percent rating for residuals of AC separation in the right
shoulder, under Diagnostic Code (DC) 5010-5304.
DC 5010 provides that arthritis that is due to trauma and is
substantiated by X-rays is to be rated as degenerative
arthritis. 38 C.F.R. § 4.71(a). Degenerative arthritis is
provided for in DC 5003, which states that degenerative
arthritis is to be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. Limitation of arm motion at the shoulder
level warrants a 20 percent evaluation. 38 C.F.R. § 4.71a,
DC 5201.
Pursuant to DC 5304, which also involves movement of the
shoulder and arm, a 10 percent evaluation is warranted for
moderate injury to Muscle Group IV (intrinsic muscles of the
shoulder girdle). A 20 percent evaluation requires
moderately severe injury to Muscle Group IV of either
extremity or a severe injury to the extremity.
Where there is a question as to which of two evaluations is
to be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Here, reference to the medical reports concerning the
veteran's shoulder shows that there is no objective evidence
of limitation of motion, moderate or marked deformity, or
malunion or nonunion of the right shoulder joint. Hence, a
rating in excess of 10 percent under DC’s 5201, 5202, and
5203, is not warranted. Similarly, a 20 percent rating is
not warranted under DC 5202 in light of the fact that there
is also no evidence that the veteran has infrequent episodes
of recurrent dislocation with guarding of arm movement only
at the right shoulder level. Although the veteran shows a 1
(one) degree of separation at the AC joint, the medical
reports disclose that the veteran has a full range of left
shoulder motion, with no evidence of swelling, spasm,
neuropathy or radiculopathy. The EMG examination showed no
abnormalities, and the veteran’s strength in the shoulders,
wrists and hands was 5/5 bilaterally.
Accordingly, these facts justify a rating of 10 percent under
DC 5304. There is no evidence in the record which would
indicate a moderately severe injury to the shoulder girdle,
as is required for a rating of 20 percent. An increase from
the currently assigned 10 percent evaluation under DC 5304 is
therefore not warranted for the veteran’s right shoulder
condition.
D. Bronchitis
At his hearing, the veteran asserted that he had trouble
breathing in the morning, and that he had coughing and that
he experienced a shortness of breath after walking
approximately ten blocks. At his VA examination in August
1994, he stated that he had smoked one pack of cigarettes per
day for twenty-one years, and claimed that he was diagnosed
with emphysema at the Tomah VAMC in December 1993. Since the
RO did not adjudicate a claim based on bronchitis, the Board
will review it on a de novo basis.
SMR’s show that the veteran’s induction and separation
examinations are negative for any disorder of the lungs or
chest. There is no record of complaints for any lung, chest
or breathing problems during service. As for post-service
treatment, a discharge summary from the Tomah VAMC, dated
October 1993, shows that, “Lungs were clear with distant
breath sounds.” The chest X-ray was normal. The veteran was
given a full examination by the VA in August 1994, at which
time the examiner found that the veteran’s respiratory system
was unremarkable, with no wheezing, rhonchi or rales. The
chest was found to be undeformed and clear to auscultation
and percussion. X-rays were interpreted to show that there
was no active parenchymal lung disease. The diagnosis, which
is unsupported by the record and was apparently based on the
veteran’s statements, was “history of chronic bronchitis.”
Under 38 C.F.R. § 4.97, Diagnostic Code 6600 (1995)
(effective to October 7, 1996), the schedular criteria for
chronic bronchitis contemplate a noncompensable rating (0
percent) where the medical findings reflect a mild
disability, with a slight cough, no dyspnea, or few rales. A
10 percent evaluation is contemplated where the medical
findings reflect a moderate disability, with considerable
night or morning cough, slight dyspnea on exercise, scattered
bilateral rales.
The evidence shows that the veteran’s chest are more
consistent with a noncompensable (0 percent) rating.
Although the veteran reported that he had shortness of breath
in the morning, and upon exercise, the VA examination showed
that the veteran’s respiratory system was unremarkable, with
no wheezing, rhonchi or rales. The chest was found to be
undeformed and clear to auscultation and percussion. X-rays
were interpreted to show that the heart was normal size and
position. There was no active parenchymal lung disease.
Based on the VA’s examination and available medical records,
which do not document dyspnea or rales, and which show that
the veteran’s chest is essentially normal, the Board is of
the opinion that a noncompensable evaluation (0 percent) most
nearly approximates the veteran's overall disability picture,
and that the schedular criteria for the next higher
evaluation have not been met. 38 C.F.R. § 4.7 (1995).
Effective October 7, 1996, the regulation governing
respiratory disorders, 38 C.F.R. § 4.97, has been revised.
As with the veteran’s claim for major depression in part 1,
supra, the question of whether the previous or newly revised
diagnostic criteria apply to the veteran’s case, the version
most favorable to the veteran generally applies. See Karnas
v. Derwinski, 1 Vet.App. 308, 313 (1991). Accordingly, the
veteran’s bronchitis claim will be examined under the current
version of the regulation to see if its application results
in a evaluation greater than a noncompensable (0 percent)
rating.
Under the new criteria, there is no provision for a
noncompensable (0 percent) rating for bronchitis. A 10
percent disability evaluation contemplates medical findings
in which there is a Forced Expiratory Volume of 71 to 80
percent predicted, or; an FEV-1/FVC (Forced Vital Capacity)
of 71 to 80 percent, or; Diffusion Capacity of the Lung for
Carbon Monoxide by the Single Breath Method ((DCLO)(SB)) 66
to 80 percent predicted. See 61 Fed. Reg. 46,729 (1996),
amending VA Schedule for Rating Disabilities; Respiratory
System (effective October 7, 1996).
In this case, the veteran was given a physical examination,
and X-rays were taken. The results of these tests were
essentially normal. The examiner apparently determined that
pulmonary function testing was unnecessary based on the
examination. The examination results therefore do not meet
the requirements for a 10 percent disability evaluation under
the new criteria for DC 6600. In every instance where the
schedule does not provide a zero percent evaluation for a
diagnostic code, a zero percent evaluation shall be assigned
when the requirements for a compensable evaluation are not
met. 38 C.F.R. § 4.31 (1995). In this case, since the
requirements for a 10 percent evaluation have not been met.
The examiner found that the veteran’s chest was essentially
normal. The Board is therefore of the opinion that a
noncompensable evaluation (0 percent) most nearly
approximates the veteran's overall disability picture, and
that the schedular criteria for the next higher evaluation
have not been met under the criteria for DC 6600 that became
effective on October 7, 1996. See 38 C.F.R. § 4.7 (1995).
In making these determinations, the Board has afforded the
veteran every possible reasonable benefit of the doubt, as it
is required to do. 38 U.S.C.A. 5107(b) (West 1991); 38
C.F.R. § 3.102, 4.3 (1995). Assuming, without conceding,
that each of the veteran’s nonservice-connected disabilities
is permanent in accordance with 38 C.F.R. § 4.17, the
veteran’s disabilities are objectively determined not to be
representative of a total, 100 percent schedular evaluation
in accordance with 38 C.F.R. § 4.15. Accordingly, on the
basis of the objective “average person” standard of review, a
permanent and total disability evaluation is not warranted.
II.
Furthermore, the veteran does not satisfy the criteria for a
schedular permanent and total evaluation under 38 C.F.R.
§§ 4.16(a) and 4.17. As the veteran has more than one
disability, he is required to have at least one disability
rated as at least 40 percent disabling in order to meet the
threshold requirement of Section 4.16(a). In this case, the
veteran’s right eye condition is rated at 40 percent.
However, there is not sufficient additional disability to
bring the combined rating to 70 percent or more since the
veteran’s combined evaluation is 60 percent. See 38 C.F.R.
§§ 4.16(a), 4.25.
III.
The Board has also considered whether a permanent and total
disability rating for pension purposes on an extra-schedular
basis may be authorized under 38 C.F.R. § 3.321(b)(2) (1995).
With respect to the subjective factors bearing on the
veteran’s possible entitlement to pension benefits, such as
age, education, and occupational background, the Board notes
that the veteran was born in 1955. In 1985 he was employed
as a cab driver. Between 1985 and 1995 he testified that he
worked only at odd jobs. In April 1995, he stated that he had
obtained a position with a newspaper. The job was 30 or more
hours per week, and the veteran said that he hoped it would
soon become full time and permanent. In a February 1995 VA
outpatient report, the veteran expressed an intention to
enroll in an educational institution and obtain an
associate’s degree in accounting. The examiner stated that
the veteran was able to recognize the delusional nature of
some of his previous beliefs. In August 1995, the veteran
tested at or above high school levels in reading, spelling
and arithmetic.
IV.
Given the foregoing considerations, the Board is not
persuaded that the veteran’s disabilities, considered in the
context of a subjective standard of entitlement of the
benefit sought, are so incapacitating as to preclude
substantially gainful employment. Accordingly, entitlement
to a permanent and total rating for pension purposes is
denied. 38 U.S.C.A. §§ 1502, 1521, 5107; (West 1991);
38 C.F.R. §§ 3.321, 3.340, 3.342, and Part 4 (1995).
ORDER
A permanent and total disability rating for pension purposes
is denied.
RAYMOND F. FERNER
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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